465 So. 2d 371 | Ala. | 1985
This is an appeal from the dismissal of a counterclaim made final pursuant to a Rule 54 (b), A.R.Civ.P., order. On May 23, 1980, the City of Prichard sued Marvin W. Sumlin Construction Company, Inc., for breach of contract. Sumlin received service on May 30 and answered with a general denial on June 23, 1980. On February 2, 1982, Sumlin filed a motion for leave to amend its answer. The court granted this motion on February 26, 1982. On that same date Sumlin filed its amendment which added a counterclaim for breach of the same contract which was the subject of the City of Prichard's complaint.
On October 5, 1983, the City of Prichard filed a motion to dismiss the counterclaim "for failure to file a claim as required by" Code 1975, §
At any rate, the record reflects that the parties continued to argue over whether the counterclaim should be dismissed. The case action summary continues with the following two entries:
"October 28, 1983 — Moot Order on above motion set aside and defendants' motion to set aside order of October 17, 1983 dismissing the counterclaim hereby *373 reinstated and Taken Under Submission.
"December 12, 1983 — Motion to set aside order dismissing counterclaim hereby DENIED."
Sumlin filed a motion for the court to enter final judgment pursuant to Rule 54 (b), A.R.Civ.P., "upon its order dismissing the Defendant's counter-claim." The court obliged and entered final judgment "on dismissal of counterclaim." Sumlin appeals from that order and from the denial of its motion to set aside the dismissal of its counterclaim.
Sumlin argues that the counterclaim should relate back under the provisions of Rule 13 (c), A.R.Civ.P., and thus be regarded as having been timely filed. The City of Prichard argues that no claim for payment was filed with the clerk as required by §
The City's argument passes over the fact that Rule 13 (c), A.R.Civ.P., provides that "All counterclaims other than those maturing or acquired after pleading shall relate back to the time the original plaintiff's claim arose." (Emphasis added.) Thus, Sumlin's counterclaim should be considered as having been filed well before the expiration of the two-year limitations period of §
The filing of a complaint has long been held sufficient claim for payment to satisfy the nonclaim provisions of §
For the foregoing reasons, we hold that the counterclaim was properly allowed in the first instance and the court erred in dismissing it. The judgment is reversed and the cause remanded.
REVERSED AND REMANDED.
TORBERT, C.J., and FAULKNER, EMBRY and ADAMS, JJ., concur.